By Robin Shulman
April 23, 2008; A04
Because Whitman did not intend to cause harm, a panel of judges on the U.S. Court of Appeals for the 2nd Circuit said, her message did not "shock the conscience" to the degree necessary to waive her immunity as a federal official.
The residents, students and office workers say Whitman should be forced to pay damages to properly clean homes and schools and create a fund to monitor health. They are considering an appeal, their lawyer said.
Whitman, who has always maintained that her agency acted responsibly, said in a statement,
Her attorneys had argued that holding Whitman personally liable would prevent officials from speaking to the public in future crises.
Three days after the attacks of Sept. 11, 2001, Whitman told reporters,
And on Sept. 18, 2001, she reassured residents that their air "is safe to breathe and their water is safe to drink." Whitman later testified in congressional hearings that she was talking about the air of Lower Manhattan generally, not Ground Zero specifically.
Soon after, many residents went back to their homes without properly cleaning them, they later reported.
The EPA's inspector general criticized the agency's handling of the crisis in a 2003 report, which found that the EPA had no basis for its pronouncements about air quality.
In February 2006, U.S. District Judge Deborah A. Batts allowed the lawsuit against Whitman to proceed and called Whitman's actions "conscience-shocking."
Activist residents said they were upset with Tuesday's decision.